Appellant Address Judge Hugh Stubbs 5th Floor, Fox Court 14 Grays Inn Rd London WC1X 8HN 5th

h June 2013

Dear Judge Stubbs I would like to apply for leave to Appeal your Reserved Decision of 7th May 2013 [1] with regard to my case ( ) and would be grateful if you could deal with the case in the light of the overriding objective under Section 2 of the Rules [2]. I will be content were you to agree to review your decision rather than forwarding this appeal to the Upper Tier. But in either case this is because you have not dealt with points which Dr Busby raised in his evidence before you and which I refer to in greater detail below. I appreciate that in your decision you state that my lawyers did not want to rely on Dr Busbys evidence, but that was against my wishes, as the accompanying papers show. I believe that the lawyers have conducted the hearing in an irregular fashion. As the appellant, I was only informed about that decision at the very last minute, and then only as a result of Dr Busbys correspondence with the lawyers, which was copied to me. I appreciate that in the end I agreed to this but that was because the lawyers said, some three days before the tribunal hearings, that they would not represent me if I insisted (as I had wished) for Dr Busby to attend. I would not be represented otherwise and the lawyers did not offer me any suggestions as to what else I could do and it was only a few days before the hearing. Mr Stephen Evans (I dont know if he works for Hogan Lovell of for the Royal British Legion) also told me on the telephone when I asked before the hearing that I could always appeal on the grounds that Dr Busby's evidence was not relied upon. I have lodged a complaint with Hogan Lovell and simultaneously with the Solicitors Regulation Authority and the Legal Ombudsman about the behaviour by Hogan Lovell and I understand that you may want to suspend your consideration of my Appeal until that matter has been dealt with. This also explains why I am not lodging this Appeal through them. Alternatively I would also like you to consider setting aside your decision and reconsidering it, this time including Dr Busby's evidence, because of the irregular way [3] Hogan Lovell has conducted my case. For example deciding not to use Dr

Busby in December but not discussing it with me until January and then only after Dr Busby had contacted me himself to advise me that is what was happening. Principal facts 1. The sequence of events immediately leading up to the Tribunal hearings is set down in Table 1 below. Also in Table 1 are references to documents which I provide as attachments. Date 18th Dec 2012 10th Jan 2013 11 Jan 2013 14th Jan 2013 16th Jan 2013 Letter (filename) From Adam Gersch to tribunal informing not calling Busby note We dont have this but it is referred to in the judgement

16th Jan 2013 18th Jan 2013 21 Jan 2013

22 Jan 2013 22 Jan 2013 Various 23 Jan 2013

23 Jan 2013

Letter to Busby from HL informing not calling (hoganovells10Jan.pdf) S Evans forwards Ken Johnsons report to asking about AHF Letter Busby to HL complaining and threatening to contact vets directly (hoganlovell140113.doc) Phone call to at work Not sure who from RBL saying Busby will be rang, but it was RBL) We writing to the vets. did not know anything about C. Busby until the phone call Letter HL to Busby (hltobusby160113.jpg) Letter from Busby to individual vets posted on 18th Jan (testvetsletter.doc) Replied with too ill to RBL phone to ask if attend no mention of C will be in attendance at Busby trial Busby writes to judge Stubbs (stubbelet220113.doc) Busby to HL what is your mandate to exclude me have to asked the vets? (hoganlovells220113.doc) Stephen Evans contacted about general issues relating to case but didnt mention Busby spoke to RBL (Cecilia Miskelly) explaining she was not happy with C Busby being excluded. CM would arrange for Rupert Sydenham (Hogan Lovell) to ring and explain Phone call from R. Sydenham sent email to was told if S Evans relaying the

wanted C Busby at the hearing then HL would no longer represent him 24 Jan 2013 S Evans calls explaining the reasons for not calling Busby. S.Evans was asked by if they lose can they appeal was told yes if they had new evidence . see notes below sent Email to Cecilia Miskelly RBL about exclusion of Busby (see Donald Battersby emails leading to trial.doc) Email from Cecilia Miskelly of RBL to explaining why Busby excluded (lettertobattersbyfrom RBL.doc) Email from S. Evans forwarding Prof. Regans report Emails from Yasmin Hogan (pro bono team) Hogan Lovell to reassuring etc (see emails leading to trial.doc) After discussion decided too late to change and had to go with Hogan Lovell. Emailed HL/ RBL Letter HL to Busby about their mandate (Letter to Dr C Busby 25 1 13.pdf) Appeals begin Judge writes to Busby (Stubbs to Dr Busby 31.1.13)

conversation with RS & said she thought it was cloak & dagger. They thought it better as CB was not mainstream and his evidence would be in conflict with other professors.

24 Jan 2013

24 Jan 2013

24 Jan 2013 24 Jan 2013

?24th Thursday

25th Jan 2013 Monday 28th Jan 2013 31 Jan 2013

In addition: has a letter to show that after signing various forms HL were awarded 47,500 in Legal Aid around July 2012. So not Pro Bono. asked S.Evans if they could appeal if lost SE replied, yes if you have new evidence asked if the new evidence could be that of which C Busby is talking about. S Evans said you could try. Additional Information:

21/02/2012 Charles Murson RBL met with and assisted in completing the forms for Legal Aid 01/03/2012 RBL inform us that Hogan Lovell will now take responsibility of the claims 15/11/2012 RBL Stephen Evans interviewed regarding the claim 2. It was my understanding, and I believe also that of the appellants, that Dr Busby had been successful in a number of Pensions Appeals cases in the past, including appeals before the current Tribunal judge, HH Hugh Stubbs, and at the time of the consolidation of all the cases in 2009 into one hearing Dr Busby was already acting as expert witness for three of the cases (the late Dawn Pritchard, Mary Williams and the late Derek Hatton) and had provided expert reports to the Tribunals Service in these cases. 3. In 2009, when the consolidation was ordered, for this reason, Rosenblatts had spoken with the 16 appellants (including me) and with our agreement had commissioned Dr Busby to write an expert report on the general issues together with specific reports for individual cases for the hearings. 4. Following the decision by Rosenblatts Solicitors in December 2011 to no longer act for me in the matter of my appeal, the firm of Hogan Lovell took over my case and that of a number of other appellants in March 2012. 5. By the end of 2012 Dr Busby had obtained access to a number of documents which he had discovered by the Freedom of Information Act Requests which he had made since 2008 and followed up, and which he had requested, and which ultimately were released in some cases in redacted form following an order by the Tribunal. 6. By the end of 2012, Dr Busby had provided 12 separate reports [4-16] on the issues, including three reports which drew attention to significant new evidence on the link between internal radiation exposure to Uranium, the main component of all the bombs, and bomb tests, and a range of ill health effects, including cancer and my own Chronic Lymphatic Leukemia. The effects of Uranium particle inhalation and ill health including cancer and leukaemia at very low doses is an area where Dr Busby is an acknowledged expert with many research papers and reports on the issue to his name. 7. Several of these reports were produced as a result of Directions made by the Tribunal Judge, yourself. 8. Taken together, these reports, and Dr Busbys evidence, provided the most powerful expert evidence for the success of my appeal, as I will outline below. However, as a result of an unfortunate and incompetent decision made in December 2012 by Hogan Lovell, in consultation with members of the Royal British Legion, but not with me or other veterans, as I now understand, Dr Busbys reports were not relied upon by the barristers who were instructed by Hogan Lovell.

9. Nevertheless, it is true that all Dr Busbys reports were submitted and available to the Tribunal. I believe that the Tribunal should, in the interest of Justice [3] have taken note of them and included consideration of their content in making the reserve judgement. It did not, and this clearly influenced the final decision as I show in the following section. 10. On December 18th or thereabouts a letter was sent to the Tribunal by Mr Gersch acting for Hogan Lovell, informing it of a decision not to rely of Dr Busbys evidence. At this time I was not informed of this decision which had been made without consultation with me or as I understand it with any of the individual appellants. 11. Dr Busby himself was not informed of this decision until 13th January in a letter dated 10th January. 12 As I understand it Dr Busby then entered into correspondence with Hogan Lovell and stated he would write to individual appellants informing them of this development which he believed they were unaware of. I was contacted by the Royal British Legion by telephone on 16th January telling me that Dr Busby would be writing to me and informing me that it had been agreed not to rely on Dr Busbys evidence. This was less than 2 weeks before the Tribunal hearings began. Further, I do not believe that I would ever have been told of the decision to not rely of Dr Busbys evidence were it not that he told Hogan Lovell that he would be contacting individual veterans to ask if they had agreed. 13. In my dealing with Hogan Lovell and the Royal British Legion at this time I demanded that Dr Busby be allowed to appear to give his evidence. At this point, on 23rd January, some days before the Tribunal began, I was told by Rupert Sydenham of Hogan Lovell that if I insisted then Hogan Lovell would not represent me. Considerable pressure was brought to bear on me to agree to go with the decision to not rely on Dr Busby; at no time was any alternative possibility offered by Hogan Lovell. 14. When I asked whether if the appeal was disallowed, I could appeal against that decision on the basis of Dr Busbys evidence not being considered, I was told by Stephen Evans (for the Royal British Legion and Hogan Lovell) that I could. 15 For these reasons I believe that this sequence of events has resulted in unfairness and injustice since evidence which would have materially affected the decision was excluded initially without my consent or involvement in the decision and ultimately by trickery and bullying at the last minute. I believe that such a sequence of events is not in the interests of justice and may constitute a procedural irregularity [3]. Effect of not addressing Busbys evidence on the Decision 16 There are a number of pieces of evidence which Dr Busbys reports discussed and which could have materially altered the judgement. I attach Dr Busbys letter to me and to the appellants which lists these but will refer to them in connection with the reserve judgement.

17 The first and most critical is the evidence cited and discussed by Dr Busby that the current radiation risk model, that of the International Commission of Radiological Protection (ICRP) is unsafe for the assessment of harm from internal radionuclide exposures, of the type experienced by me and the other appellants. The issue is particularly relevant to exposure to Uranium particles. Included in the bundle and referred to always by Dr Busby in his reports is the Lesvos Declaration of 2009 which was signed by a number of very eminent global authorities on radiation and health. In particular the concept of Absorbed Dose (milliSieverts) on which the entire case pivots has been criticised by many authorities for many years including the CERRIE committee. However, in the Reserve Judgement paras 203 onwards the Tribunal accept the radiation risk model of the ICRP without question. ICRP is an independent, international organisation with more than 200 volunteer members from approximately 30 countries across six continents. These members represent the leading scientists and policy makers in the field of radiological protection.' The Tribunal therefore has no trouble in accepting their views as authoritative However, Dr Busbys reports take issue with this position and draw attention to many peer-reviewed publications, which he has supplied to the Tribunal and which were before it, showing that the current radiation risk models do not explain or predict a whole range of radiation related illnesses following internal exposures, particularly to the element Uranium. 18. Other evidence and argument contained in Busbys various reports before the Tribunal but not addressed were: (1) The presence of large quantities of alpha emitters notably Uranium present in the dust at the Christmas Island airfield as shown by the beta gamma ratios in the AE Oldbury Dominic reports (2) The anomalous health effects of Uranium as shown by a great deal of recent research including both epidemiological and theoretical work that I have personally carried out with colleagues and which is in the peer-review literature. (3) The evidence from the data produced as a result of his Freedom of Information requests showing that the high level winds at Christmas Island were in the opposite direction to the low level winds and carried the plume back across the Island. (4) The evidence from photographic data and evidence from the Canberra crews that large amounts of sea water were sucked into the Grapple Y stem and later rained out on the Island. (5) The rainout of radioactive material over Christmas Island and the admission that the sticky papers were either brought in or did not collect fallout owing to the rain washing it off. (6) The fact that the MoD assertion that the doses at Christmas Island were lower than the UK can be shown to be false because Uranium and Radium are known components of coral atolls, are present in sea water and were measured by the New Zealand surveys. (7) Various other points he made about missing radionuclides, C-14, Tritium etc.

(8) The evidence of high levels of congenital disease in veterans children and grandchildren shown by Dr Busbys study of the British Nuclear Test Veterans Association members in 2007. 19 This last item (8) above is very relevant to my own experience and congenital conditions which developed in my own children. 20 With regard to my own claim for Chronic Lymphatic Leukemia Dr Busby provided a specific report which was before the Tribunal but not addressed but which showed studies which demonstrated that the condition was caused by radiation, contrary to arguments referred to in the Tribunal decision. The weighting given to the MoD expert Prof Catovsky would have been balanced by evidence given by Dr Busby. 21 With regard to expertise, Dr Busby is the only expert among all those involved who has specific expertise in the area of radiation and health. He has published many scientific reports and papers in peer-review journals on this issue and has been retained as an expert on radiation and health by many courts in the USA. Testimonial letters about his expertise were submitted for the Ionising Radiation Appeals following an attempt by the treasury solicitor to have him excluded in 2011. Pension Appeal Tribunals Colin Duncan and John Cammish 22 My internal exposure was partly a result of cleaning radioactive contamination from aircraft. Dr Busby has acted as expert in two similar cases of appellants who cleaned aircraft of radioactivity, those of Colin Duncan (PAT ref :ENT/00893/2007)) and John Cammish (PAT ref RNT/00317/2010). Both these appeals were heard before Judge Stubbs and both were allowed. In the case of Colin Duncan heard in December 2008, the claim was for non Hodgkin Lymphoma, a very similar disease to Chronic Lymphatic Leukemia and some would say the same disease. This is specifically conceded in the current decision at paragraph: 262 (UNSCEAR 2006 discusses the various types of leukaemia and comments (Annexe A, page 113, paragraph 500) 'CLL is now thought to be a variety of non Hodgkin's lymphoma.' 23 It is therefore hard to imagine why if Dr Busbys evidence before the current tribunal were admitted the same conclusion about reasonable doubt being raised as to causality would not be made. 24 In the decision for Colin Duncan, the Tribunal, including Judge Stubbs, wrote about Dr Busby: We find that his evidence is both cogent and reliable and raises a reasonable doubt that the Secretary of State's views which rely exclusively on contemporary dose meter readings is wrong. It is accepted in the relevant Medical Appendix that nonHodgkin's lymphomas have an increased incidence following exposure to excess ionising radiation. We find that the combination of Mr Duncan's written and oral evidence and Professor Busby's evidence both of which we have found is reliable raises a reasonable doubt that Mr Duncan's Non-Hodgkin's Lymphoma is attributable to service.

25 A similar appeal was also allowed in the case of John Ramon Cammish (ENT/00317/2010), also heard before Judge Stubbs in April 2011. Cammish cleaned radioactive aircraft and developed laryngeal cancer. In this case, the decision specifically drew attention to Uranium exposure which Dr Busby has shown is the most likely vector for ill health in the appellants. 42. We find that there are two papers which lend support to there being a causal link for lower dose exposure. (1) 'Cancer Risk in Nuclear Workers Occupationally Exposed to UraniumEmphasis on Internal Exposure' is co-authored by well-known experts in their field, two of whomwork for the French Institute of Radioprotection and Nuclear Safety (IRSN), a French public authority . . . Conclusion 26 I conclude that the decision made by Hogan Lovell not to rely on Dr Busbys evidence materially disadvantaged my appeal and that of the other appellants. The decision was made without informing me or other veterans before the decision was made so that we could discuss the issue and make an informed choice. In the interests of justice for me and for the other veterans I believe that this may represent a procedural irregularity, though even if this is not so, in the interests of the good name of the Tribunal and of justice for the appellants it should be re-visited in some way. Signed:

Date:

References [1] Reserved Decision the War Pensions and Armed Forces Compensation Chamber. Ionising Radiation Appeals. May 7th 2013 [2] Tribunal Procedure (First Tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008 http://www.legislation.gov.uk/ukpga/Geo6/67/39/section/5B [3] Tribunal Procedure (First Tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008 ; Section 35 (1) (a) and Section 35 (2) (d). http://www.legislation.gov.uk/uksi/2008/2686/part/4/made [4] Busby C (2008) Expert witness statement for Dawn Pritchard Pensions Appeals case ENT/00039/2008; NINO YB7208272 [5] Busby C (2009) Expert witness statement for Mrs M G Williams Pensions Appeals Case No ZW280088B 47pp (williamsrept.doc)

[6] Busby C (2009) Supplementary statement for Dawn Pritchard Pensions Appeals case in response to questions from Tribunal ENT/00039/2008; NINO YB7208272 [7] Busby C (2008) Do gamma doses from film badges give information about internal doses to atomic tests particpants from beta and alpha emitters? Green Audit Research Note 2008/8 (oldburytrept.pdf) 13pp [8] Busby C (2009) Expert witness statement for Mr Derek Hatton Pensions Appeals case NINO ZS133518B 32pp (hattonrept.doc) [9] Busby C (2010) Health consequences of exposures of British personnel to radioactivity whilst serving in areas where atomic bomb tests were conducted. Composite report for the Royal British Legion, the RAFA and Rosenblatts Solicitors in response to Tribunal Serveice Directions issued 23 July 2010 in respect of 16 named appellants. (testcaserept5.pdf) 152 pages. [10] Busby C (2010) Health consequences of exposures of British personnel to radioactivity whilst serving in areas where atomic bomb tests were conducted. Supplementary Report 1st October 2010 on 3 additional cases. (testvetrept4suppl2.doc)19pp [11] Busby C and Williams D (2010) Meteorological records, airflow and othet factors affecting local fallout from British nuclear tests at Christmas Island in 195758). A joint report from Green Audit and Eos. Oct 2010. Occasional Paper 2010/12 35pp (testhysplitrept.doc) [12] Busby C (2012) Health consequences of exposures of British personnel to radioactivity whilst serving in areas where atomic bomb tests were conducted. Supplementary Report 1st October 2010 on 3 additional cases. 2nd Supplementary report. Jan 2012. Gisted secret reports. (testvets2ndsuppl.doc) 13pp [14] Busby C (2012) Health consequences of exposures of British personnel to radioactivity whilst serving in areas where atomic bomb tests were conducted. Response to K Johnston: Exposure to ionizing radiation at Christmas Island. A Review. 5th Feb 2012 (testvets3rdsuppl.doc) 15pp [15] Busby (2012) Health consequences of exposures of British personnel to radioactivity whilst serving in areas where atomic bomb tests were conducted. Alpha emitters in the fallout and estimated dosimetry for the Christmas Island Tests: evidence from the secret documents. Feb 10th 2012 (testvets4suppl) 19pp [16] Busby (2012) Health consequences of exposures of British personnel to radioactivity whilst serving in areas where atomic bomb tests were conducted. Response to K Johnston: Ionising radiation appeals: Christmas Island Radiation Exposure Revised Dose Estimates. A Note. Aug 29th 2012 (testvets5suppl) 10pp List of Attachments; See Table 1 for their relevance. 1 hoganovells10Jan.pdf

2 3 4 5 6 7 8 9

hoganlovell140113.doc hltobusby160113.jpg testvetsletter.doc stubbelet220113.doc hoganlovells220113.doc Donald Battersby emails leading to trial.doc Letter to Dr C Busby 25 1 13.pdf Stubbs to Dr Busby 31.1.13

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